Q: If I resign, would I have no recourse with MSPB? A: Generally not. An employee-initiated action, like resignation, is presumed voluntary and outside of the Merit System Protection Board’s (MSPB) jurisdiction. Freeborn v. Dep’t of Justice, 119 M.S.P.R. 290, 294 (2013). However, if the federal employee presents sufficient evidence to establish that the action was obtained through duress, coercion, or shows a reasonable person would have been misled by the agency, the presumption of voluntariness is removed. Green v. Dep’t of Veterans Affairs, 112 M.S.P.R. 59, 63 (2009). The employee has the burden of proving the MSPB’s jurisdiction by…
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In the past year, the U.S. Merit Systems Protection Board (MSPB) has issued several decisions reversing an agency’s adverse action against an employee because the agency failed to follow its own adverse action procedures. Not every instance in which an agency fails to follow its own action will result in reversal. Rather, those instances in which the failure to follow the internal agency procedure results in “harmful error.” Most if not all agencies have internal procedures for taking an adverse action. Those procedures mostly mirror and then build upon the governmentwide statutes and regulations proscribing the taking of an adverse…
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk“ program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. The VA took a firm public position that despite the special firing authority Congress passed last summer, VA senior executives retained a constitutional right to their jobs and thus were entitled to pre-termination due process. Then, VA litigated the opposite position before an…
It’s been about one year from the furloughs of 2013, and the Merit Systems Protection Board is making progress processing the approximate 32,400 appeals it received. That’s right, 32,400 employee appeals challenging their furloughs. That number is jaw-dropping when you consider that the MSPB has been averaging about 8,500 appeals annually before furloughs. With a furlough docket of that size, it is worth acknowledging a furlough decision. In sum, no surprises. This board decision, Dye v. Department of the Army, involved a U.S. Army Corps of Engineers employee who was furloughed for six days from his construction control position. He…
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: I applied for an SES position. No hiring decision has been made, but someone has been hired on detail to “act” in the position and the position has been re-advertised to reflect specific credentials of the detailee. I complained to the MSPB but they said they don’t have jurisdiction. Did this violate any rule? A: The rule that governs this situation is contained at 5 U.S.C. § 2302 (b)(6). It…
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: If an individual was removed from federal service, appealed the action to the MSPB and accepted a “clean record” settlement agreement in exchange for voluntary resignation, how does that individual legally and honestly answer some of the questions found on legal documents? For example, some of the questions ask if anything has happened in the last five or seven years and lists such things as: “left my job by…
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: To took a promotion to the GS system out of the NSPS system. I was assigned step 1, which is not where I would have been if I had remained GS throughout my career. This affects my CSRS “high three” computation, as well as my final years of federal service. The Merit Systems Protection Board said they had no jurisdiction in 2008 and the Office of Special Counsel concurred. What…
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: I filed an appeal for an agency’s failure to rate my performance for the year 2010. I was initially rated but later the agency came back with a recalculated performance rating by adding an additional element. I refused to sign and the agency declared the original rating was null and void. I filed an appeal but MSPB claims it has no jurisdiction. Which agency enforces regulations and code? A:…
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: Once an MSPB complaint has been settled, what rights does the complainant have to pursue a grievance on the same matter? A: The settlement agreement should have required you to waive your rights to continue to litigate the matter. So,you probably cannot also file a grievance. Bill Bransford is managing partner of Shaw, Bransford & Roth, PC. Disclaimer: Ask a Lawyer publishes information on this website for informational purposes…
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: Who can represent a person at the MSPB? A: A paralegal, a non-lawyer union steward or your colleague down the hall can be your representation at the MSPB, so long as your representative does not hold him or herself out to be a lawyer. If you prevail with a non-lawyer representative, you are not entitled to attorneys’ fees. Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.…